The appellee, Thomas W. Cain, brought this action in the District Court of Galveston County against the appellants, the Pullman Palace Car Company and the International Great Northern Railroad Company, to recover damages for wrongful ejection from a sleeping car. He recovered judgment for $100 against both of the appellants in the court below, from which they have appealed.
Appellee is a negro, and is a resident of Galveston, Texas. On September 15, 1893, he was in St. Louis, Missouri, and purchased a first class railroad ticket from that place to Galveston, which called for transportation over different connecting lines of railroad, one of which was the railroad of the appellant International Great Northern Railroad Company, from Longview, Texas, to Galveston. After appellee had purchased his railroad ticket, he went to the office of the appellant Pullman Palace Car Company and purchased a ticket for transportation to Galveston in one of its sleeping cars. He was given a berth in the car Silica, and was carried in that car as far as Troup, Texas, a station on the railroad of appellant railroad company. After he had arrived at Troup, the trainmaster of the appellant railroad company, J.C. Gregory, ejected appellee from the sleeping car, and required him to take a seat in one of the ordinary passenger coaches in the train, in an apartment set apart for negroes under the separate coach law of this State. Appellee protested against being removed from the sleeping car, but the trainmaster required him to leave it, and the Pullman porter, at his direction, carried appellee's baggage out after him. The conductor of the sleeping car was present when the appellee was being ejected, and did nothing to prevent his ejection. A rebate of $2 on the sleeping car fare for the balance of the distance was at the time paid to appellee, and accepted by him under protest. There was no division in the sleeping car making separate apartments for white people and negroes.
The evidence showed that, while the trainmaster, Gregory, was present on the train, he had charge thereof as superior in authority to the train conductor, and had authority to determine the right of passengers to transportation in the sleeping car; that the sleeper was as much a part of the train as any other car. The officers of the railroad company had the exclusive right to decide who should occupy space in the *Page 505 Pullman car, and the servants of the Pullman Company in charge of the car were subject to the orders of the railway officials.
No contract between the railroad company and the Pullman Company for the hauling of the sleeping cars of the latter company was put in evidence, and the conclusions as to the right and authority of the railroad company over the sleeping car and the servants of the Pullman Company in charge thereof are drawn from the testimony of the witnesses. Appellee, when first requested to leave the sleeper, claimed a right to be there as an interstate passenger. This question arises in the record, but neither party has discussed it, and as a majority of the court are of the opinion that the judgment below in favor of the appellee may be affirmed, under the law of this State, without regard to the interstate commerce law, that question will not be passed upon.
The Pullman Company contends that the judgment against it is wrong, because all questions with respect to the right of a passenger in the sleeping car to remain there were under the exclusive decision and will of the officer of the railroad company in charge of the train, and that the contract for transportation was with the railroad company, and not with the Pullman Company. Counsel has cited a number of authorities in support of this position; but the contract of the Pullman Company was for something in addition to and more substantial than the mere right to occupy a berth in a sleeping car. It was also for the right to occupy it during the entire passage to Galveston. As said by Justice Stayton in Pullman Co. v. Pollock, 69 Tex. 121 [69 Tex. 121], it was a contract for transportation. The language used in the opinion in that case would impose a greater obligation on the sleeping car companies than many of the authorities do cited from other courts.
Under the contract arising out of the sale of the ticket to appellee, the Pullman Company at least undertook to furnish him with a berth in the sleeper Silicia, or like carriage, during the passage from St. Louis to Galveston, provided the railroad company hauled it. The railroad company did haul the sleeper through, and the Pullman Company failed to furnish the berth in that sleeper, or any other, for a considerable portion of the distance. It is said that this was not the fault of the Pullman Company, since by its arrangement with the railroad company the latter company had charge of the car and servants of the former, and the exclusive right to determine who should ride therein; but this is no answer, for the Pullman Company will not be relieved of its contract by an arrangement with the railroad company which prevented it from carrying it out.
It is further contended that the contract was illegal, since it provided for the transportation of a negro in the same car with white passengers, and on that account could not support an action for damages growing out of a breach thereof. As far as the record shows, it was lawful for negroes and whites to ride in the same cars for the entire passage, until the State of Texas was reached. Appellee did not contract for anything that was unlawful. He did not contract that he should be carried *Page 506 in the same car with white people, in contravention of the laws of the State of Texas. He had the right to assume that the Pullman Company did not intend to violate the law, and that when the State of Texas was reached he would be furnished with a berth in a coach or apartment of equal comfort and convenience, separate from the white passengers.
The liability of the railroad company arises from the fact that it ejected the appellee from the car without furnishing him another like conveyance, equal in points of comfort and convenience. It may be conceded, although the appellee testified that he was required to sit in a smoking car, that the trainmaster put him in a first-class passenger coach, equal in all points to the first-class coaches occupied by the white passengers, but it was not a sleeping car, and did not have the same arrangements for the comfort and convenience of the passengers that the car had from which the appellee was expelled, and in which white passengers rode.
What we have said, we think, disposes of the first, fifth, sixth, seventh, and eighth assignments of error presented in the brief of the appellant Pullman Company. The second, third, and fourth assignments do not show any material error.
The language of appellee's counsel complained of in the ninth and tenth assignments deserves severe condemnation, but the amount of the verdict shows that the jury were not influenced by it, and the verdict should not be set aside on account thereof.
Both appellants complain of the action of the court in allowing the appellee to ask the witness Gregory if he did not intend to make the appellant leave the car, if he had not gone out. It was proper to show what the intention of Gregory was, and there was no error in permitting appellee to show it.
The evidence showed that the appellee had a railroad ticket for through transportation over the connecting lines, including that of the International Great Northern Railroad, from St. Louis to Galveston; that at St. Louis he made the contract for a berth in a Pullman car for the entire passage; and that the Pullman car was a part of the train, under some arrangement between the appellants for the railroad company to haul the same; also, that, when the trainmaster was present on a train, he was the superior to the train conductor, and his orders were obeyed; that although the sleeper was marked, "For Whites," it was the property of the Pullman Company, had no partition in it to separate white from negro passengers, and that there was no other car in the train equal in point of comfort and convenience going to Galveston for appellee to ride in — in fact, no sleeping car for negroes. Such being the facts, there was no error in the charge of the court complained of under the third assignment of error in the brief of the International Great Northern Railroad Company.
We find no error in the charge of the court requiring a reversal of the judgment. Nor was there any error in refusing the several instructions *Page 507 asked by counsel for the railroad company. It is not necessary to notice the assignments in detail, as what has already been said shows the reasons why the charges asked should have been refused. Appellee did not voluntarily leave the car. The evidence shows that he was required to go and left under protest.
The judgment of the court below is affirmed. Affirmed.